Case Summaries

THE following notes of judgments were prepared by the reporters of the All England Law Reports.

Arbitration

SA Coppee-Lavalin NV, and Voest-Alpine AG v Ken-Ren Chemicals and Fertilisers Ltd (in liq); HL (per Lord Keith of Kinkel, Lord Slynn of Hadley and Lord Woolf; Lord Browne-Wilkinson and Lord Mustill, dissenting); 5 May 1994.

In an exceptional case, the High Court had jurisdiction to order security for costs in an international arbitration held in London under the ICC Rules of Conciliation and Arbitration (1988 edn; CCI No 447-3, Paris 1993).

The ICC Rules did not specifically mention security for costs, but s 12 of the Arbitration Act 1950 provided: '(6) The High Court shall have, for the purpose of and in relation to a reference, the same power of making orders in respect of (a) security for costs . . . as it has for the purpose of and in relation to an action or matter in the High Court'.

The exercise of the discretion to order security for costs should be approached on a case to case basis in the light of the prime consideration that arbitration was a consensual process and that the national court and arbitrators alike should strive to make the consensus effective.

But the situation in the present case was sufficiently exceptional to justify the court's intervention.

Colin Reese QC and Dominique Rawley (Clifford Chance, and Denton Hall) for the plaintiffs; Peter Gross QC (Freshfields) for the defendant.

Employment

British Coal Corporation v Smith & ors; CA (Balcombe, Evans, Roch LJJ); 28 April 1994.

In the other case heard jointly with North Yorks CC v Ratcliffe (The Independent, 11 May 1994) the court dismissed British Coal's appeal from the Employment Appeal Tribunal ((1993) ICR 529) and affirmed the industrial tribunal's decision that Evelyn Smith and 1,285 other women, employed by British Coal as canteen workers and cleaners at 208 different establishments, did work 'of equal value', within s 1(2)(c) of the Equal Pay Act 1970, to that done by 200 male clerical or surface mine workers 'in the same employment' as them at 14 different establishments, including workwear or bath attendants or superintendents, land sale attendants and 'tea mashers', and that British Coal had failed to establish the defence under s 1(3), that the variation in pay was 'genuinely due to a material factor which is not the difference of sex'.

British Coal had sought to rely on the policy of 'disassociation', by which a distinction had historically been drawn between mineworkers (underground and surface), ancillary workers, and clerical workers, whose pay structures, together with such benefits as concessionary coal (to which the women were not entitled), were governed by a variety of different national and local agreements.

But although the applicants were limited in their choice of male comparators, the application of the policy of disassociation to these particular classes of employees was not shown to be objectively justified on grounds other than sex.

Nicholas Underhill QC and Bankim Thanki (Nabarro Nathanson, Doncaster) for British Coal; Michael Beloff QC and Jeremy McMullen (Gregory Rowcliffe & Milners) for the National Union of Mineworkers' applicants; Christopher Vajda (Hopkin & Sons, Mansfield) for the Union of Democratic Mineworkers' applicants.

Illegal contract

Skilton v Sullivan; CA (Nourse, Beldam, Simon Brown LJJ); 18 March 1994.

The parties entered into a contract for the sale of carp, which attracted VAT.

In order to postpone payment of VAT, the seller invoiced the buyer for trout, which was zero-rated for VAT.

The seller could nevertheless recover the outstanding payment due from the buyer under the contract since the illegal purpose of the invoice was formed after the contract had been concluded and the seller was not relying on his own unilateral illegal intent to establish his right to recover under the contract.

Alan Gourgey (Capstick Dale & Ptrs, Romford) for the appellant; Donald Lambie (Holmes & Hills, Braintree) for the respondent.